Attorney General v Kikwanzi (Miscellaneous Application 750 of 2024) [2025] UGHCCD 9 (27 January 2025)

Full Case Text

# **THE REPUBLIC OF UGANDA**

# **THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION)**

# **MISCELLANEOUS APPLICATION NO. 750 OF 2024**

# **ARISING OUT OF CIVIL SUIT NO. 191 OF 2010**

**ATTORNEY-GENERAL::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

## **VERSUS**

**HAJI SWAIBU NIWEINE KIKWANZI:::::::::::::::::::::::::::::::::::::::::RESPONDENT**

**Before:** *Hon. Justice Dr Douglas Karekona Singiza*

#### **RULING**

# **1 Introduction**

The motion before me illustratesthe ordeal that litigants in this country face when their disputes take a long time to be resolved. The emotional drain, financial costs and inconvenience suffered by claimants are all too clear to ignore. Indeed, the dispute before this court that gave rise to the suit which is the subject of the impugned default judgment arose on 28 August 2008. The suit itself was filed on 25 August 2010, with an *ex parte* judgment delivered on 4 September 2017. The litigation on two related consolidated applications went all the way to the Supreme Court until 13 June 2024, when a final decision was delivered dismissing the two applications.

It is frustrating for any litigant to know that that his or her dispute has never been resolved on its merits. In a dispute like the one before this court, it is usually not the fault of the courts when delays occur, for at times the Constitution demands them. The principle in this regard is that, rather than deny a party a chance to have his or her dispute determined on its merits, a court of law should take as long as is necessary to ensure that the judicial outcome is fair and just.1

#### *1.1 Background*

The motion before this court mainly seeks to set aside the *ex parte* judgment and decree of this court that was delivered on 4 September 2017 *vide* Civil Suit No. 190 of 2010. In addition, the motion seeks for the costs of the application. It is anchored on eight grounds, which are summarised below.2

The Attorney-General (AG) is dissatisfied with the *ex parte* judgment because he had good reasons for not having defended the main suit. At any event, the respondent, Haji Swaibu Niweine Kikwanzi (hereinafter Haji Kikwanzi) had improperly proceeded *ex parte* without formally seeking the permission of the court as required by rule 6 of the Government Proceedings (Civil Procedure Rules), a failure which violated the AG's right to be heard. Considering that the AG has a good defence wherein serious legal questions need to be answered, there is a danger that, should the motion fail, a bad precedent may be set if those questions remain unanswered. It is the position of the AG that no prejudice will be suffered by

1 See the views expressed by Katureebe CJ in explaining the essential role of article 126(2)(e) of the Constitution in *Horizon Coaches Limited v Edward Rurangaranga and another* SCCA No. 18 of 2009 p 10: '[I]t could be an injustice to deny the applicant [seeking an extension of time for appeal purposes] an opportunity to have the matters of the contention between parties on a matter of law finally disposed off by this court because of errors by his counsel.'

2 The motion before me was brought under the provisions of Order 9 rules 12 and 27 of the Civil Procedure Rules S. I 71-1 and rule 6 of the Government Proceedings (Civil Procedure Act) Rules S. I 77-1.

Haji Kikwanzi because the motion was filed without delay and the interests of justice tilt in favour of allowing the motion so that the dispute can be heard on its merits.

# **2 Parties' depositions**

The motion is supported by the deposition of Mr Ojambo Bichachi, a state attorney of the AG's chambers; in turn, the motion is contested by the deposition of Haji Kikwanzi. In the paragraphs below, I first summarise the averments made by Mr Bichachi.

## *2.1 Deposition by Mr Bichachi*

Mr Bichachi begins his deposition with a history of when the original suit was filed, the reliefs that had been sought by Haji Kikwanzi, and the different state attorneys that prosecuted the defence in the suit the subject of the challenged *ex parte* judgment. The deposition then delves into the nitty-gritty detail of how the matter was defended, the directions that were issued by the court, and how the case officer (then Mr Gerald Batanda) always attended the court without fail until the point at which Mr Bichachi was appointed as case officer.

The dates of 5 June 2014, 24 September 2014, 5 November 2014, and 4 December 2014 are presented as critical for understanding what occurred before the *ex parte* judgment was taken out. 26 August 2015, the date at which a proposal for a settlement was made – a proposal that failed – is highlighted, as are 18 December 2015 and 21 December 2015, the dates when the suit was fixed for hearing. It is Mr Bichachi's evidence that for some reason his colleague did not communicate the new date for hearing. As a result, the court proceeded *ex parte* in September 2017 and delivered judgment, yet without formally informing the AG by way of a notice; the AG was informed of the *ex parte* decision only when the final decree was delivered.

After the court decision, the AG elected to challenge the *ex parte* decree all the way to Supreme Court but without success, mainly because, in the view of the two appellate courts, the procedure the AG's attorneys adopted in challenging the decision was probably the wrong one. It is Mr Bichachi's evidence that it was never a deliberate decision by the AG not to contest the suit and that, at any event, the dispute is of great public importance, given the large amounts of public money that were awarded by the court. Thus, should the *ex parte* decree remain unchallenged, an unfair charge on the consolidated fund may result, and, in the process, pose a financial risk that could affect many government projects.

Mr Bichachi insists that the AG has a good case, and sets out the following factual narrations:

- 1) Haji Kikwanzi did not specifically plead his alleged income earned from his bakery business, and neither was any evidence presented to the court. - 2) What was pleaded was a general claim for compensation for the loss of bakery machines and loss of machines as general damages. - 3) No claim whatsoever was presented that the business had incurred any loss after the machines were impounded. - 4) No particulars were provided of the income that was lost after the alleged impounding of the bakery machines, except for the statement that adequate compensation at market price should be a guide. - 5) No documentary evidence (such as books of accounts, bank statements, or income tax returns) was presented. - 6) The court relied on Haji Kikwanzi's counsel's submissions that alleged the loss of an estimated UGX 5,000,000= in income. - 7) The court thus relied on Haji Kikwanzi's counsel's arguments to consider a lower sum of UGX 4,000,000= as daily income lost, even though that amount had not been specifically pleaded and proven and was thus impossible to verify.

According to Mr Bichachi, there are good grounds to allow the motion: first, justice demands that disputes between parties always be heard and determined on their merits, and, secondly, mistakes by counsel should never be used as a basis to stop a litigant from pursuing his or her claim. Notwithstanding the alleged ineptitude of the AG's attorneys at the time, Mr Bichachi argues that such weaknesses should not rebound on the AG, especially where adequate reasons exist to rectify those mistakes.

#### *2.2 Deposition by Hajji Kikwanzi*

For his part, Haji Kikwanzi vehemently disputes the AG's assertions. He begins by rehearsing the history of the litigation in the High Court from the time that the cause of action arose in August 2008. It is Haji Kikwanzi's contention that when the suit was fixed for hearing, the AG's attorneys began to delay the hearing of the claim by constantly dodging attendance at court sessions, a fact that was established by the Court of Appeal in consolidated Miscellaneous Applications No. 156 of 2028 and No. 149 of 2018. To drive the point home, the following events are recounted:

- 1) At different times, this court adjourned the hearing of the suit to give the AG the chance to attend court sessions, but without much success. - 2) For example, the dates of 23 August 2013, 9 December 2013, 19 December 2013, 28 February 2014, 7 April 2014, 5 June 2014 are highlighted. - 3) On the day the suit was fixed for formal proof, counsel for the AG appeared and informed the court of the planned settlement, and thus a new hearing date of 4 December 2014 was set. - 4) The court adjourned the matter for hearing, but on the scheduled date the AG did not attend; no reasons were given for this, prompting the court to adjourn the suit again, this time to 26 August 2015. - 5) A fresh settlement offer was proposed by the AG, and the suit was again adjourned, until 10 September 2015. - 6) At the next court sitting, both parties reported that the settlement discussions had failed, and the suit was adjourned once more, until 18 December 2015 and 21 December 2015. - 7) When the AG did not appear, this prompted Haji Kikwanzi (as per paragraph 7(m) of his deposition) to request, via his lawyer, that the court '*proceed* ex parte *which prayer was allowed by the court'* (emphasis added).

According to Haji Kikwanzi, for some reason the AG appeared after the *ex parte* order had been granted but was allowed by the trial court to go on record, including being given timelines for submissions (albeit that the AG did not comply with them). All these events are also summarised in the ruling on record from the two consolidated applications before the Court of Appeal. In the light of the findings of the Court of Appeal, Haji Kikwanzi insists that the AG participated fully in the hearing of the suit but opted not to exercise his right to challenge the evidence on record by cross-examining witnesses or presenting witnesses of his own.

Responding to the alleged concern over the large sums of money that had been awarded, Haji Kikwanzi makes the point that had the AG paid them promptly at the time, interest would not have accrued on them. Indeed, even after an order of *mandamus* was granted by this court in Miscellaneous Application No. 790 of 2017 (a copy of which was pleaded), no payment was made of the sums ordered by court. Instead, according to Haji Kikwanzi, the AG elected to file an appeal out of time before the Court of Appeal for an extension of time and validation of the appeal – applications which were dismissed. Haji Kikwanzi believes that the justices of the Court of Appeal made three points that are an important guide in the determination of the motion before this court:

- The AG handled his case before the High Court in a casual manner and in turn delayed the justice of the claim. - Ample time had been given to both sides to be heard before a decision was ultimately made to proceed *ex parte*. - The AG elected of his own free will not to participate in the hearing of the suit, which suggests that he was guilty of laxity.

Haji Kikwanzi takes the view that – given that the Court of Appeal itself faulted the AG for laxity, and taking into account the AG's fruitless attempts to overturn the Court of Appeal decision in the Supreme Court – there is evidence indicating that the present motion is a nonstarter. At the very best, the contention goes, the present motion should be considered a futile attempt to bypass the determinations already made by a superior court or courts, determinations which in turn leave this present court powerless to do much about them.

Haji Kikwanzi also makes three other specific averments, which are summarised as follows:

- 1) Rule 6 of the Government Proceedings (Civil Procure) Rules is not available for the AG to rely on (no reasons are given to support this assertion). - 2) The reliefs granted were not particularly large and were in any case legally justified. - 3) The accumulated award was a result of the AG's deliberate and negligent actions in refusing to comply with the courts' verdicts in time. - 4) Notwithstanding the advice of both the Solicitor General and the Permanent Secretary/Secretary to the Treasury (PSTT) to comply with the courts' verdicts, the AG remains unmoved.

In rejoinder, Mr Bichachi argues that the delay in prosecuting the suit was in part caused by the court itself as well as the respondent. While conceding that the AG was at times not represented in the court, he (Mr Bichachi) asserts that any infringement of rule 6 of the Government Proceedings (Civil Procedure) Rules amounts to a violation of a right to be heard and that this is sufficient for setting aside the *ex parte* judgment. It is Mr Bichachi's view that it is wrong to consider the decisions of the Court of Appeal and Supreme Court as final, given that those decisions dealt with extensions of time within which to appeal and did not seek to resolve the dispute on its merits. He insists that all that the Supreme Court did was fault the AG on the procedure that had been adopted to challenge the decision of the Court of Appeal, all the while leaving it an open possibility for the AG to approach this court to set aside the *ex parte* judgment. In making this point, Mr Bichachi insists that the plea of *res judicata* is unavailable to Haji Kikwanzi.

## **3 Issues for determination**

The motion before this court was prosecuted by written submissions. From the pleadings and arguments advanced by the two parties, three issues emerge for the court's determination:

- *1) Is the application before this court* res judicata*?* - *2) Is there sufficient cause to set aside the* ex parte *judgment?* - 3) *What remedies are available?*

This section deliberates on the first issue: *Is the application before this court* res judicata*?* In answering the question, counsel for Haji Kikwanzi invites this court to consider that the dispute spent a seven-year period being heard in the appellate courts, a period during which the AG's applications were dismissed – only to be revived before this court on the basis of an erroneous invocation of rule 6 of the Government Proceedings (Civil Procedure) Rules. It is the argument of counsel for Haji Kikwanzi that the present motion raises similar grounds and issues as those already determined by the two appellate courts in regard to the same subject matter. In insisting on this position, counsel relies on section 7 of the Civil Procedure Act Cap.3 A host of other court decisions are also cited to argue that a court before which a plea of *res judicata* is raised must first confirm that the disputants are similar to those who appeared before the court of similar jurisdiction and that the issues to be answered are similar to those that had already been resolved in the previous proceedings.4

3 Section 7 of the Civil Procedure Act Cap 282 provides that '[n]o court shall try any suit in which the matter directly and substantially in issues has been directly and substantially in issues in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court'. See also *Karia and Another v Attorney-General and Others* [2005] 1 EA 83.

4 See *Farook Aziz (Administrator of the Estate of Salim Kabasingo) v Abdalla Abdu Maruku* CA No. 4 of 2002. Similar views were expressed in *Hon Maj. (Rtd) Kahinda Otafire v the New Visions Printing and Publishing Corporation and 2 others* HCS No. 505 of 2019, where finality of the disputes on their merits was considered as one of the key determinants for a plea of *res judicata*.

The insistence here is that, to the extent that the two superior courts rejected the alleged numerous procedural flaws and failed to find any sufficient grounds to overturn the *ex parte* judgment, those decisions must have substantively exhausted the alleged procedural flaws that the AG now seeks to reopen through the motion before this court. Although counsel for Haji Kikwanzi separately made reference to rule 6 of the Government Proceedings (Civil Procedure) Rules and cited many authorities, it is not entirely clear what point they intended to convey for this court to consider. That said, counsel cautions that there is a risk that the motion in its present form may in fact be in contempt of the superior courts' decisions, and that this may potentially impair the reputation of this very court.

In response to the plea of *res judicata*, the AG's arguments start by inviting this court to consider the import of section 7 of the Civil Procedure Act on *res judicata* as expounded by the Supreme Court as follows:

- 1) There must have been a former suit whose question for determination was resolved by a competent court. - 2) The dispute in the former suit between the parties should have been directly or substantially similar to the present suit. - 3) The parties in the former suit should have been similar. 5

The AG makes the point that the decisions of the two appellate courts on the dispute sought merely to provide procedural clarity on the best way that the *ex parte* judgment should have been challenged, and thus maintains that the suit was never determined on its merits at all. Furthermore, the AG's contention is that in terms of article 126(2)(e) of the Constitution (a provision which has been discussed extensively by courts in this country), technical flaws in litigation cannot, on their own, be used to deny a party from approaching a court for a remedy. Where strict adherence to technical considerations could result in a denial of actual justice, then the inclination of the court should be in favour of bypassing such technical hindrances so that the ends of justice can be met, 6 which would suggest that, in the present motion, the plea of *res judicata* is not available for Haji Kikwanzi.

In rejoinder, the AG questions counsel for Haji Kikwanzi's understanding of the principle of *res judicata* since the key consideration is that a previous suit to which the principle is sought

5 See n 3.

6 See *Horizon Coaches* (n 1).

to be applied should have been determined on its merits. The argument is that since the decisions of the Court of Appeal and Supreme Court dealt with the question of leave to appeal and the extension of time for appeal purposes, the two applications could not have dealt with the merits of the suit at all.7 Emphasis is placed on Madrama JSC's *en passant* comment that the correct course of action should have been to apply to set aside the decision.

## *3.1 Examination*

I note that both sides cite the principles and authorities on the doctrine of *res judicata* correctly and differ solely on the question of how the doctrine ought to be applied to the motion before this court. Before addressing this question, however, I find it necessary to allay the fears of counsel for Haji Kikwanzi, and Haji Kikwanzi himself, by stating that no trial judge may ever depart from the decision of an appellate court except by way of distinguishing the appellate court(s)' decisions, a norm that has its origins in the Latin term, *stare decisis.*8

#### *3.2 Determination*

The two decisions of the Court of Appeal and Supreme Court which have been pointed out by counsel for Haji Kikwanzi dealt with the questions of whether permission could be granted to the AG to file an appeal against the *ex parte* judgment out of time. Both the Court of Appeal and Supreme Court deliberated extensively on these questions and found no good reasons to allow those applications. In fact, the Supreme Court, in its decision dealing with the AG's challenge of the Court of Appeal decision, expressed surprise that the AG would have elected to appeal to the Court of Appeal rather than apply to set aside the *ex parte* judgment before this very court. 9

The present motion deals with the issue of whether there are any good reasons for setting aside the *ex parte* judgment which is the subject of challenge. While it is likely that the two appellate courts engaged with a similar set of events, I reject the view that questions in any application

7 The decision in *Law Society of Kenya v Hillary Mutyambai Inspector General National Police Service & 4 others; Kenya National Commission on Human Rights & 3 others (Interested Parties)* [2020] eKLR is cited to emphasise that the parties to a dispute cannot be allowed to present their case outside of their pleadings in courts of law. The decision in *The Estate of the late Charlese James Mark Kamoga and Another v Attorney-General and other* SSCA No. 1 of 2022 is relied on as well to make the point that *res judicata* cannot be invoked in cases where the merits of the case have never been determined. In this instance, the decree that had been challenged arose in fact from a consent judgment.

8 See *Attorney-General v Uganda Law Society* Constitutional Appeal No. 1 of 2006, cited by Ntende JCC in *Murisho Shafi and 5 Others v Attorney-General and Another* Constitutional Application No. 2 of 2017 arising from Constitutional Petition No. 3 of 2017.

9 See the views of Madrama JSC in *Attorney-General v Haji Swaibu Nuweabine Kikwanzi* Civil Application No. 13 of 2019 and 15 of 2020 (arising from Court of Appeal Civil Applications Nos. 156 and 149 of 2018) p 4 paras 20–30. for leave to appeal out of time could be similar to those seeking to set aside an *ex parte* judgment. For that reason, I reject the plea of *res judicata* as entirely inapplicable in the motion before me. In taking this view, I am convinced that the *ex parte judgment* that is now challenged before this court was never litigated fully on its merits in the two appellate courts' rulings.

The following section deliberates on Issue 2: *Is there sufficient cause to set aside the* ex parte *judgment?* In answering this question, recourse must be had to the provisions of Order 9 rule 27 of the CPR. I have opted to depart from this court's practice of avoiding in-text referencing and instead reproduce the rule in full, given its pertinence to the questions before me:

[I]n any case in which a decree is passed ex parte against the defendant, he or she may apply to the court by which the decree was passed for an order to set it aside: and if he or she satisfies the court that the sums was not duly served, *or that he or she was prevented by any sufficient cause from appearing when the suit was called on for hearing*, the court shall make an order setting aside the decree as against him or her on such terms as to costs, payment into court, or otherwise as it thinks fit, and shall appoint a day for proceedings with the suit; except that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may set it aside as against all or any of the other defendants also. 10

#### *3.3 Arguments by the AG's attorney*

Counsel for the AG focuses one major considerations. That, as a rule, the court should crosscheck if it is indeed true that court summons was never duly served on the opposite party and, in the alterative, ascertain if there were sufficient cause that could have prevented the applicant from appearing in court.

A number of decisions were cited from countries with a similar legal history to ours to explain why courts should always adopt a liberal construction of the phrase 'sufficient cause'. The point was made that, in determining whether to allow or reject a motion like the one before this court, the focus should be on substantive-justice considerations as opposed to proceduraljustice ones. Thus, all that a court of law must do is ensure that the applicant was neither negligent nor driven by bad intentions in seeking to set aside an *ex parte* judgment, 11 in which case the phrase 'sufficient cause' becomes analogous to words such as 'adequate' or 'enough'. 12 The following seven propositions were advanced by the AG as suggestions that

10 Emphasis added.

11 See *Registered Trustees of the Archdiocese of Dar es Salaam v the Chairman Bunju Village Government and 11 Others,* citing *Gideon* Mose Onchwati *v Kenya Oil Co*. *Ltd* & *Nation Media Group* [*2017*] KEHC 8960.

12 See also *Parimal v Veena Alias Bharti* (Supreme Court of India) No. 1467 of 2011.

this court could consider in determining whether there are adequate or enough reasons to set aside an *ex parte* judgment:

- 1) *Mistake of counsel:* The suit was originally handled by Mr Gerald Batanda, a state attorney who has since left the chambers of the Hon. AG and should have appeared in court at all times. In fact, in rejoinder the AG explains that the non-appearance of Mr Bichachi, who inherited the file from Mr Batanda, was not intentional but an error or lapse in judgment, one which should not be blamed on the AG. - 2) *Great public importance:* The default judgment involves colossal sums of money (UGX 34,000,000,000,000=), and if left unchallenged, it could set a bad precedent. - 3) *Good defence:* The AG suggests that he has a good defence in that the awarded special damages had not been pleaded and proven in terms of the alleged lost income. - 4) *Serious legal questions:* The AG argues that there are serious legal questions that must be determined since the trial court wrongly applied the same rate of special damages in awarding future loss of business contrary to known principles on damages. The amount was described as an award for 'loss of income', notwithstanding that that amount was never pleaded specifically; instead the court relied on submissions from the counsel for Haji Kikwanzi that did not form part of the evidence. - 5) *Fair hearing:* The right to a fair hearing is non-derogable, and an infringement of it (as was the case in the default judgment) justifies the setting aside of the decision. - 6) *Irregularity of the* **ex parte** *judgment:* In terms of sections 10 and 26(c) of the Government Proceedings Act Cap 77 and rule 6 of the Government Proceedings (Civil Procedure) Rules, no default proceedings may take place against the government unless leave through a formal application has been granted by the court.13 - 7) *No inordinate delay:* The AG approached this court to set aside the *ex parte* judgment as soon as a decision of the Supreme Court that had dealt with the Court of Appeal decision was made.

13 The AG in rejoinder characterises the decision in *Osotraco Limited v Attorney-General* High Court Suit No. 00-CV-CS-1380 of 1986 as one that dealt with the threatened attachment of government property, rather than discussing the import of rule 6 of the Government Proceedings ( Civil Procedure) Rules.

#### *3.4 Hajji Kikwanzi's arguments*

After correctly restating the key principles that emanate from Order 9 rule 27 of the CPR, including with reference to the many court decisions that have discussed the rule in detail, counsel's argument remained that there is no sufficient cause on the basis of which the default judgment of this court could be interfered with. This is especially true considering that the Court of Appeal on pp 6–7 found no reasons to do so. Counsel for Haji Kikwanzi responded to each of the seven suppositions advanced by the AG, making six separate arguments:

- 1) *Mistake of counsel***:** It was argued that there is no evidence from the AG as to how exactly the mistake of counsel played out sufficient to interfering with the decision of this court. Here the argument remains that in the absence of any evidence demonstrating how the alleged mistake played out, the claim of 'mistake of counsel' should not be availed to the AG. Citing the decision of the Supreme Court, counsel for Haji Kikwanzi maintains that not every wrong step made by a client's counsel will always absolve a litigant, especially when such wrong steps speak to the adoption of a wrong litigation strategy.14 Considering that the AG's counsel was guilty of dilatory behaviour, it would amount to rewarding wrong behaviour if such conduct were to be construed as a 'mistake of counsel' capable of impeaching the *ex parte* decision. - 2) *Great public interest:* Relying on the decision of the *Sylvester Byaruhanga v Fr Emmanuel Ruvugwaho* CA No. 228 of 2018 (Court of Appeal), counsel for Hajji Kikwanzi emphasises two main considerations: first, that the case must transcend the circumstances of the case, and secondly, that the case must bear a significant public interest. Accordingly, since the Court of Appeal had investigated all the claims and validated the reliefs granted by the trial judge without making any findings that the suit was of great public importance, it would be misleading to raise such a 'great public interest' question at this stage. The explanation was that the huge amounts of money involved now are the result of an accumulation of interest that stems from a refusal to honour the award timeously. - 3) *Good defence:* Counsel for Haji Kikwanzi contested the assertion that the AG has a good defence by highlighting the allegedly evasive nature of the defence the AG's attorney mounted during the filing of the pleadings. It was argued that such a defence not only infringes the provisions of Order 6 rules 8 and 10 of the CPR, but also runs

14 See *Capt Philip Ongom v Catherine Nyero Owata* SCCC No. 14 of 20002.

counter to the numerous precedents of the courts in this country.15 Haji Kikwanzi's counsel held that the two-paragraph defence filed by the AG, along with the acknowledgement in his submissions that AG witnesses were not willing to testify during the trial, did not augur well for the existence of a good defence.

- 4) *Serious legal question:* Again, counsel for Haji Kikwanzi maintained that since the Court of Appeal made the finding that the remedies granted by this court were justified, no other serious legal question remained to be answered by this court. - 5) *Fair hearing:* On this score, counsel for Hajji Kikwanzi was brief but to the point, noting that the Court of Appeal had made three key findings. First, the AG deliberately sat on his right to be heard; secondly, the AG indulged in conduct that was dilatory; and, thirdly, the AG showed no interest in prosecuting his defence during the trial. In consideration of these three findings, counsel for Hajji Kikwanzi concluded that there is no evidence to suggest that the AG's right to be heard was ever violated. - 6) *Requirement for leave* under rule 6 of the Government Proceedings (Civil Procedure) Rules: Counsel for Haji Kikwanzi invited this court to consider the possibility that these provisions are no longer applicable, going by the numerous precedents of this court.

#### *3.5 Examination*

After considering the parties' averments and arguments, I take the view that, of all the propositions advanced by the AG as good hints for this court to rely on in order to find that there are adequate or enough reasons to set aside the *ex parte* judgment, the following two stand out: first, mistake of counsel, and, secondly, the irregularity of the *ex parte* judgment.

While the remaining five propositions are not necessarily irrelevant, these could very well be dealt with at a later stage should the application before me succeed. It is therefore not necessary, and nor is it wise, to determine whether the motion deals with a claim that is of great public importance, whether indeed the AG might have a good defence at all, or whether there could be serious legal questions that need to be resolved, such as the allegedly unproved special damages. These are besides the point. What is important is that the motion before me was filed after the highest court in the land pronounced on itself whether the correct procedure had been

15 Indeed, Order 6 rules 8 and 10 of the CPR require that each allegation in a claim must be engaged with individually and in reasonable detail except in cases of damages. See also *MHK Engineering Services (U) Ltd v MacDowell Limited* Civil Application No. 825 of 2018 per Wamala J.

adopted to challenge the *ex parte* judgment. There is no doubt that the AG was found at fault for having adopted a procedure that was evidently wrong.

# **4 Mistake of counsel**

This court is cognizant of the constitutional role of the office of the AG in civil litigation in this country. 16 It is a role which requires that lawyers who serve in that office (generally referred to as state attorneys) have to be competent and possess the requisite skills and experience to defend any and all claims against the Government of Uganda. For example, it is expected that any state attorney who works in the chambers of the AG should draft pleadings meticulously, advance convincing arguments, and attend court proceedings when required to and do so on time. In addition, state attorneys are always expected to adopt the correct procedure in court and seek out relevant evidence in all suits against the government. They should also demonstrate a considerable level of professional diligence when arguing their cases and be well placed to know when to seek leave to appeal and when not to. Where these various expectations disappear into thin air, the chambers of the AG inevitably become dysfunctional, thus posing the risk of the government's losing many suits in courts of law (and to the detriment of taxpayers) that could have been determined differently.

## *4.1 Determination*

The Supreme Court takes the firm view that while 'it is an elementary principle of our legal system that a litigant who is represented by an advocate is bound by acts and omissions of the advocate in the course of representation … a litigant ought not to bear the consequences of the advocate's default unless the litigant is privy to the default'. 17 In *Continental Tobacco (u) Limited v Global Hardware Company Limited* (Arua High Court CA No. 17 of 2013), Mubiru J notes that there two ways in which a mistake of counsel may operate to exonerate a client in applications to set aside an *ex parte* judgment:

1) where something unexpected occurs because of the omission and or inaction of an advocate who is duly instructed and, who without the knowledge of the client, makes an error which then negatively affects the client's interests; and

16 In terms of article 119(3) and (4) of the Constitution, the office of the Attorney-General is the government's principal legal adviser. It has three main functions: 'to give legal advice and legal services to the Government on any subject; (b) to draw and peruse agreements, contracts, treaties, conventions and documents by whatever name called, to which the Government is a party or in respect of which the Government has an interest; (c) to represent the Government in courts or any other legal proceedings to which the Government is a party ...'

17 As per Odoki CJ, Oder JSC, Tsekooko JSC, Mulenga JSC, and Kanyeihamba JSC in *Capt. Philip Ongom, supra* (note 14) while overturning the decision of the Court of Appeal in Constitutional Application No. 73 of 2001.

2) the acts or omissions complained of should be due exclusively to the professional negligence of the lawyer.

For instance, the failure to attend court on time and transmit requisite information to the client are cited as examples of mistakes of counsel. The principle seems to be that once there is proven evidence of a professional mistake by a lawyer, such a mistake should never be imputed to a client.18 There is indeed evidence on record that the case state attorney in the proceedings before this court was careless, a fact which is not contested by Haji Kikwanzi. The argument by the latter's counsel remains, indeed, that even when ample time was given by the court, the attorney still did not appear to defend the suit at all. In fact, separately, counsel for Haji Kikwanzi maintains that the AG had in any case filed only a two-paragraph statement in defence of the claim. I thus find that there is enough reason to allow the application on account of mistake of counsel.

## **5 Irregularity of the** *ex parte* **judgment**

The contention of the AG seems to be that, to the extent that the procedure provided for by law in civil proceedings against the government was never followed, the *ex parte* judgment against the government was not only unfair but manifestly irregular. Section 26(2)(b) of the Government Proceedings Act caters for the enactment of rules of court 'for providing that in the case of proceedings against the Government …'. It is specifically provided that a 'plaintiff shall not enter judgment against the Government in default of appearance or pleading without the leave of the court to be obtained in an application of which leave of which notice has been given to the Government …' On the basis of the above provision, rule 6 of the Government Proceedings (Civil Procedure) Rules was promulgated as follows:

Judgment shall not be entered, and no order shall be made, against the Government in default of appearance or pleadings under any provisions of the principal Rules without leave of the court, and any application for such leave shall be made by summons served not less than seven days before the return day.

## *5.1 Examination*

Of all the authorities cited by counsel for Hajji Kikwanzi, I have honed in on only two decisions: the first is the Constitutional Court decision in *Dr James Rwanyarare v Attorney-General* (2003) 2 EA 664, while the second is the High Court decision in *Attorney-General*

18 See *Sepira Kyamulasire v Justine Bikachuka Bagambe* SCCA No. 20 of 1995.

*and another v Human Rights Awareness and Promotion Forum.19* In *Dr Rwanyarare,* the court dealt with the equivalent of section 14(2) of the Government Proceedings Act Cap 287, a provision that protects the government against injunctions. The Constitutional Court found no justifiable and sound reasons as to why Parliament should grant preferential treatment to the government in civil suits, which would amount to favourable treatment that infringes the provisions of article 20(1) of the Constitution concerning the equality doctrine. Relying on the above reasoning, Elubu J in *Human Rights Awareness and Promotion Forum* held that

in view of the above decisions of the Constitutional Court cases cited above, *I find that leave and notice is* [sic] *not mandatory before a defaults judgment can be entered against Government.* Under Order 9 of the Civil Procedure Rules, no such leave or notice are *[sic]* required for ordinary parties. The same should hold true for the Government. *In the same way the applicant cannot use it as a shield against the default judgment* …20

### *5.2 Determination*

This court differs in opinion from my learned colleague Elubu J for the two reasons. First, the decision in *Dr Rwanyarare* dealt with the unconstitutionality of a statutory provision; that decision did not deal with the protective power of rule 6 of the Government Proceedings (Civil Procedure) Rules made pursuant to section 26(2)(b) of the Government Proceedings Act. Secondly, by necessary implication, Elubu J's decision inevitably 'reads down' the mandatory legal requirement for obtaining leave before an *ex parte* judgment against the government can be granted.

It is not likely that a high court can read down a rule of court made under the power of an Act of Parliament when that authority is reserved exclusively for the Constitutional Court.21 When the Rules Committee enacted the provisions of rule 6 of the Government Proceedings (Civil Procedure) Rules under the authority of Parliament, it must have been intended that at all material times there should be no excuse whatsoever for the government should a default judgment be entered after a formal notice had been served to the AG for leave and leave had been granted.

This court could very well, in exercise of its discretion, find enough reasons to hold that a mistake of counsel is probably good enough set aside the *ex parte* judgment. However, a finding that there was also a breach of a statutory provision as well as a rule made under the

19 Cited as Miscellaneous Application No. 482 of the 2020 arising out of Miscellaneous Cause No. 81 of 2024 per Elubu J

20 *Ibid*. Emphasis added.

21 See generally article 137 of the Constitution.

authority of Parliament before the *ex parte* judgment was granted demands, as a matter of course, that such a judgment be set aside without hesitation. This view is supported by the use of the word 'shall' in both the parent statute as well as the rule made thereunder. In the absence of such a leave on record, it is the determination of this court that any breaches of the protective power of rule 6 of the Government Proceedings (Civil procedure) Rules must inevitably compel this court to find an even stronger reason to set aside altogether the impugned *ex parte* judgment against the AG.

The last section engages with Issue 3: *What remedies are available?*

# **6 Final orders**

- 1) This court finds sufficient reasons to set aside the *ex parte* judgment and decree in Civil Suit No. 191 of 2010 for the reasons already given. - 2) Both parties are directed to file all their pre-trial documents within a period of 30 days from the date of this ruling. - 3) This court will then hear the main suits on a day-to-day basis so that the dispute can be determined expeditiously. - 4) Each party is to bear its own costs.

Douglas Karekona Singiza

## **Judge**

27 January 2025